Criminal Appeal Court clarifies when a judge can reject plea in mitigation given without supporting evidence

The Lord Justice Clerk, Lord Carloway, sitting with Lord Malcolm, heard that in January 2015 at Inverness Sheriff Court, the appellant Scott Daniel Ross pled guilty to charges that on 7 October 2014 he: (1) had a knife in his possession; and (2) assaulted a police officer by pushing her to the ground to her injury.

He was sentenced to one year’s imprisonment in respect of charge (1) and 23 weeks imprisonment on charge (2).

In the course of the plea in mitigation, it was said that the appellant and his friends had been invited to a first floor flat, but when they entered the block they encountered a neighbour, who had been outside her door, holding a knife and behaving in an aggressive fashion.

It was said that the appellant had taken the knife from her before continuing upstairs where he met the police, who had been called following reports of a disturbance, but the appellant panicked and ran off when the knife was discovered following a search, pushing over an officer who tried to stop him.

No account was given to the police at the time that the appellant had disarmed an aggressive neighbour and still had the knife. Rather, the appellant had been concealing the weapon.

The sheriff stated that he was not prepared to accept the account given in mitigation ex parte, and reported that what was said, although not contradicted by the Crown, was not agreed with them either.

The procurator fiscal depute had commented that even if the appellant’s version were true, he was still guilty of the offence and in view of the sheriff’s scepticism, he informed the appellant’s agent that if he intended to rely on what was said in mitigation then the appellant would have to lead evidence in support of it.

Following a short adjournment, evidence was led to support the plea, but the sheriff rejected the explanation in mitigation for three reasons: first, it had not been given at the time, in circumstances where, if it had been true, he would have expected the appellant to have informed the police; secondly, there was a disparity about the degree to which the appellant and the neighbour were said to have known each other; and thirdly, there was the evidence that the neighbour’s knife was different from that recovered from the appellant.

Accordingly, the sheriff sentenced the appellant on the basis that he had arrived at the block of flats with the knife in his possession and given his extensive previous convictions – which included 11 assaults and one High Court conviction for drug supply in 2011 – the sheriff selected the custodial sentence, but the appellant appealed.

Refusing the appeal against sentence, the judges observed that the circumstances in which it is appropriate for the court to hear a proof in mitigation were “relatively clear”.

Delivering the opinion of the court, the Lord Justice Clerk said: “In the ordinary case, a sheriff will normally proceed upon the basis of ex parte statements of fact contained in a plea in mitigation which are not manifestly absurd, do not contradict the plea of guilty or the Crown narrative of fact, and which are not disputed by the Crown. That will be the position in the vast majority of cases. However, that is not to say that the sheriff must do so in every situation.”

In the 1997 case of McCartney v HM Advocate, it was held that: “As a general rule the court will accept what is said in mitigation in the absence of any specific contradictions by the Crown. It may be, however, that the court itself ex proprio motu does not feel that it can accept what is said in the ex parte statement in mitigation and, if that be the position, that should be made clear to the defence in order that the defence may seek an opportunity of having a proof in mitigation.”

Lord Carloway continued: “It is apparent from this dictum that, even if the Crown do not expressly contradict what is said in mitigation, if there is no agreement as to the narrative, then, if the circumstances justify such a course in order to sentence on the basis of accurate fact, it is open to the court, as a matter for its discretion, to advise the defence that the court is not prepared to accept what has been said in the absence of evidence in its support.”

The appeal judges concluded that the sheriff was “entitled to call for evidence rather than leave the appellant’s explanation out of account”.

The Lord Justice Clerk said: “The sheriff had good reason for questioning the mitigatory explanation; notably the circumstances of the search about which he had heard testimony which prima facie significantly undermined its veracity…Ultimately, having heard the evidence, the sheriff explained why he did not accept the appellant’s account. His explanation is adequately reasoned and the appeal must be refused.”